Habeas Rule 12(b)(5) Dismissals Must Use the Twombly/Sisney “Plausibility” Standard—South Dakota Retires the “No Set of Facts” Formulation in Habeas

Case: Guzman v. Sullivan, 2026 S.D. 38 (S.D. June 17, 2026)

1. Introduction

Guzman v. Sullivan arises from Theodore Guzman’s post-conviction habeas corpus application challenging his Pennington County convictions for three counts of rape of a minor and one count of sexual contact with a child under sixteen. After a mistrial in a first trial (hung jury), a second jury convicted Guzman and he received three consecutive life sentences plus fifteen years. This Court affirmed the convictions in State v. Guzman, 2022 S.D. 70, 982 N.W.2d 875.

Proceeding pro se, Guzman filed a habeas application alleging ten grounds and requested appointed counsel. The State (Warden Daniel Sullivan) moved to dismiss under SDCL 15-6-12(b)(5) (Rule 12(b)(5)). The habeas court dismissed all grounds without an evidentiary hearing and without appointing counsel. On Guzman’s request, the Supreme Court issued a certificate of probable cause (CPC) authorizing appeal on four specified issues and ordered appointment of appellate counsel.

The decision is significant less for its case-specific affirmance and more for its doctrinal clarification: the Court harmonized the Rule 12(b)(5) dismissal standard in habeas with modern South Dakota civil pleading law and discontinued reliance on the abrogated “no set of facts” formulation.

2. Summary of the Opinion

The Court affirmed the habeas court’s dismissal of the two certified issues Guzman actually argued on appeal: (1) ineffective assistance for failing to request psychiatric examinations of the victims (or, as reframed by Guzman, failing to secure defense expert assistance), and (2) ineffective assistance for failing to move to dismiss based on the constitutional speedy-trial right. It deemed the other certified issues abandoned because Guzman did not brief them—namely, ineffective assistance relating to cross-examination of the victims and an “actual innocence” claim based solely on newly discovered evidence.

Critically, the Court “take[s] this opportunity” to clarify the governing Rule 12(b)(5) standard in habeas cases: courts should apply the same plausibility-based standard used in other civil cases and should no longer refer to the “no set of facts” language.

3. Analysis

3.1. The New/Clarified Rule: Rule 12(b)(5) in Habeas Uses the Same Plausibility Standard as Other Civil Cases

The Court traced habeas dismissal practice to Jenner v. Dooley, 1999 S.D. 20, 590 N.W.2d 463, which recognized the civil nature of habeas and approved Rule 12(b)(5) dismissals of “nonmeritorious applications,” while also quoting older language (via Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416) that referenced “no set of facts.” The habeas court, however, relied on Hernandez v. Avera Queen of Peace Hospital, 2016 S.D. 68, 886 N.W.2d 338, which—through Sisney v. Best Inc., 2008 S.D. 70, 754 N.W.2d 804—adopted the modern Twombly plausibility framework.

On appeal, the State urged the Court to explicitly align habeas dismissals with ordinary civil pleading law and to reject continued use of the Schlosser/Jenner “no set of facts” phrasing. The Court agreed, explaining that while it still recognizes habeas as an exceptional collateral remedy, it will “no longer refer to the now-abrogated ‘no set of facts’ language” and will conform habeas Rule 12(b)(5) analysis to the standard used in other civil cases.

Importantly, the Court preserved habeas-specific guidance from Jenner: a habeas application must pass a “minimum ‘threshold of plausibility,’” and “unspecific, conclusory, or speculative” allegations remain insufficient. The shift is largely one of doctrinal coherence and terminology—bringing habeas pleading into explicit alignment with South Dakota’s post-Sisney framework (reflecting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and the abrogation of Conley v. Gibson, 355 U.S. 41 (1957)).

3.2. A Second Clarification: Counsel Considerations Can Affect Whether Rule 12(b)(5) Dismissal Is Premature

The Court added a practical, habeas-specific caution: when ruling on a Rule 12(b)(5) motion, the habeas court “may need to consider whether the petitioner has had the assistance of counsel or has requested the appointment of counsel,” because the Legislature has created a statutory right to counsel in some circumstances under SDCL 21-27-4. The Court suggested dismissal may be “premature” in some cases absent appointed counsel—particularly where an indigent incarcerated petitioner cannot access the record or cannot sufficiently plead facts outside the record without investigative capacity.

This portion of the majority opinion is not a holding that counsel must be appointed before dismissal in all cases; rather, it is guidance that the appointment-of-counsel question is part of the procedural fairness calculus in a plausibility-based dismissal environment.

3.3. Precedents Cited and How They Shaped the Decision

A. Appellate jurisdiction and issue-limiting effect of the CPC

• Evans v. Sullivan, 2024 S.D. 36, 9 N.W.3d 490: Used to reinforce that the Supreme Court’s habeas appellate jurisdiction is limited to CPC-certified issues (“specific showing” required) and to support the abandonment doctrine (certified issue not briefed is abandoned).
• Giesen v. Giesen, 2018 S.D. 36, 911 N.W.2d 750: Cited for the general abandonment principle—issues identified but not briefed and argued are deemed abandoned.

B. Rule 12(b)(5) pleading/dismissal standards

• Jenner v. Dooley, 1999 S.D. 20, 590 N.W.2d 463: Anchor for applying civil procedure in habeas and for the “threshold of plausibility” concept, plus the warning that conclusory/speculative allegations can be dismissed.
• Siers v. Weber, 2014 S.D. 51, 851 N.W.2d 731 and Steiner v. Weber, 2011 S.D. 40, 815 N.W.2d 549: Used for de novo review of Rule 12(b)(5) dismissals and to show the Court’s more recent practical use of plausibility/conclusory standards in habeas.
• Hernandez v. Avera Queen of Peace Hospital, 2016 S.D. 68, 886 N.W.2d 338 and Sisney v. Best Inc., 2008 S.D. 70, 754 N.W.2d 804: Provided the modern pleading baseline: allegations must raise a right to relief above speculation; labels/conclusions are insufficient; “insuperable bar” supports dismissal.
• Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Conley v. Gibson, 355 U.S. 41 (1957): Historical pivot point: Conley’s “no set of facts” was abrogated by Twombly, and Sisney adopted that change for South Dakota.
• Total Auctions and Real Est., LLC v. S.D. Dep't of Rev. & Reg., 2016 S.D. 95, 888 N.W.2d 577: Cited for the current civil formulation: accept material allegations as true and construe in favor of the pleader to see whether allegations allow relief.

C. Appointment of counsel in habeas

• SDCL 21-27-4 and State v. Reed, 2010 S.D. 105, 793 N.W.2d 63: SDCL 21-27-4 creates a statutory right to appointed counsel under conditions; Reed equates “good faith” with “non-frivolous.” The majority used these authorities to underscore that counsel considerations can be relevant when assessing whether dismissal is premature.

D. Ineffective assistance of counsel doctrine (Strickland framework)

• Strickland v. Washington, 466 U.S. 668 (1984): The governing two-prong deficient-performance/prejudice test.
• Reay v. Young, 2019 S.D. 63, 936 N.W.2d 117, Rodriguez v. Weber, 2000 S.D. 128, 617 N.W.2d 132, and Neels v. Dooley, 2022 S.D. 4, 969 N.W.2d 729: Used to restate and operationalize Strickland, including that courts may dispose of claims on either prong and that “reasonable probability” governs prejudice.
• Spaniol v. Young, 2022 S.D. 61, 981 N.W.2d 396 and Dunn v. Reeves, 594 U.S. 731 (2021): Support the principle that decisions about experts are typically strategic and presumed reasonable; limited resources and strategic tradeoffs are central.

E. Psychiatric/psychological examination of sex-abuse victims

• State v. Cates, 2001 S.D. 99, 632 N.W.2d 28 and State v. Osgood, 2003 S.D. 87, 667 N.W.2d 687: Establish that the defense bears the burden of showing “substantial justification” for ordering such exams; inconsistency alone is insufficient; unsupported assertions are inadequate.

F. Speedy-trial analysis (Barker factors)

• Barker v. Wingo, 407 U.S. 514 (1972): Four-factor balancing test (length of delay, reason, assertion of the right, prejudice).
• State v. Jones, 521 N.W.2d 662 (S.D. 1994), State v. Karlen, 1999 S.D. 12, 589 N.W.2d 594, and State v. Goodroad, 521 N.W.2d 433 (S.D. 1994): Provide South Dakota’s speedy-trial applications, including presumptive prejudice at delays beyond one year and the importance of attribution of delay.
• Doggett v. United States, 505 U.S. 647 (1992): Used to emphasize that presumptive prejudice triggers analysis but does not alone establish a violation.
• Vermont v. Brillon, 556 U.S. 81 (2009): Supports the principle that defense-caused delay weighs against the defendant.
• State v. Tiegen, 2008 S.D. 6, 744 N.W.2d 578, State v. Krana, 272 N.W.2d 75 (S.D. 1978), and United States v. Loud Hawk, 474 U.S. 302 (1986): Reinforce that prejudice must be shown with specificity; mere possibility or generalized claims are insufficient.

G. Preservation/waiver principles (new arguments on appeal; reply-brief issues)

• State v. Holy, 2025 S.D. 19, 19 N.W.3d 529: Cited to decline consideration of arguments raised for the first time on appeal or first advanced in a reply brief.

3.4. Legal Reasoning Applied to the Certified Issues

A. Psychiatric evaluation / expert assistance claim

Although the CPC framed the issue as failure to request psychiatric evaluations of the victims, Guzman’s appellate brief broadened the argument to the lack of a defense expert to counter the State’s experts and to explain inconsistencies or alternative medical explanations. The Court treated expert decisions as strategic under Spaniol v. Young, 2022 S.D. 61, 981 N.W.2d 396 and Dunn v. Reeves, 594 U.S. 731 (2021), and emphasized the specific substantive hurdle for compelled exams of sex-abuse victims: “substantial justification” under State v. Cates, 2001 S.D. 99, 632 N.W.2d 28 and State v. Osgood, 2003 S.D. 87, 667 N.W.2d 687.

The Court found Guzman’s pleadings and arguments speculative: he did not identify facts that would have supported substantial justification for further examinations, especially given that psychiatric evaluations from 2018 existed in the in-camera reviewed records. On prejudice, the Court relied on the trial record: Duffy cross-examined the State’s experts on forensic interview pitfalls and credibility-related issues, reducing any likelihood that the absence of a defense expert altered the outcome.

B. Speedy-trial ineffective assistance claim

The Court evaluated whether a motion to dismiss for speedy-trial violation would likely have succeeded (and thus whether counsel was deficient and whether prejudice existed under Strickland). Applying the Barker v. Wingo factors, the Court accepted the three-year delay as sufficient to trigger analysis but held the remaining factors favored the State: most delay was attributable to defense motion practice, counsel changes, and continuances connected to defense preparation; there was no record assertion of the right; and Guzman did not allege concrete impairment of his defense from the delay.

The Court refused to consider Guzman’s new appellate assertions that he privately told counsel he wanted a speedy trial and did not consent to continuances, because they were not raised below and were not the kind of facts requiring appointed habeas counsel to present in the first instance. On the merits as presented, the Court held there was no reasonable probability the trial court would have dismissed the indictment had counsel moved to do so.

C. Abandonment of certified issues not briefed

The Court applied a strict abandonment rule: even if an issue is CPC-certified, it is abandoned if not argued in the opening brief. This disposed of (i) the cross-examination ineffective assistance claim and (ii) the newly-discovered-evidence “actual innocence” claim.

3.5. The Dissent’s Approach and the Majority’s Boundary Lines

Retired Justice Kern (concurring in part/dissenting in part) agreed on the merits of two ineffective-assistance issues but would have exercised discretion to consider the cross-examination and actual innocence claims, and would have found the habeas court abused its discretion by not appointing counsel for the initial habeas proceeding. The dissent emphasized SDCL 21-27-4’s statutory right to counsel (when necessary to ensure a full, fair, and impartial proceeding), the life sentences at stake, and the practical inability of an incarcerated pro se petitioner to investigate recantation evidence.

The majority, while acknowledging in general terms that counsel considerations may affect whether dismissal is premature, enforced two procedural limits in this case: (1) arguments not raised below (or first asserted on appeal) are not considered, and (2) certified issues not briefed in the opening brief are abandoned, with reply-brief attempts coming too late.

3.6. Impact

• Doctrinal alignment and cleaner pleading law: Habeas applicants and courts now have an explicit statement that Rule 12(b)(5) in habeas follows the same plausibility-based standard used in other civil cases. This reduces doctrinal confusion created by continued quotation of “no set of facts” in some habeas opinions after Sisney v. Best Inc..
• Practical emphasis on specificity: Habeas pleadings that rely on generalized suspicion (“children’s propensity to be untruthful,” unsupported recantation assertions, or speculative claims about what experts might show) face heightened dismissal risk unless connected to concrete, plausible factual allegations.
• Strategic decisions insulated absent a prejudice showing: Claims tied to experts (or the lack of them) will continue to be difficult under Strickland given strong deference to trial strategy and the need to show outcome-changing prejudice.
• Speedy-trial IAC claims require a “would-have-won” showing: The opinion underscores that in habeas, counsel’s failure to file a motion is not prejudicial unless the motion had a reasonable probability of success—requiring a Barker analysis anchored in the existing record.
• Procedural discipline in CPC appeals: The Court reiterated that CPC defines jurisdiction and that even certified issues can be lost through non-briefing.
• Potential future litigation on counsel-before-dismissal: The majority’s guidance in paragraph 21 (counsel may be necessary before Rule 12(b)(5) dismissal in certain contexts) provides a platform for future petitioners to argue that denial of counsel made dismissal premature—though this case does not resolve the outer boundary of that principle.

4. Complex Concepts Simplified

• Habeas corpus: A civil proceeding used to collaterally challenge the legality of custody after conviction—an “exceptional” remedy because it attacks a final judgment.
• Rule 12(b)(5) motion to dismiss: A request to dismiss for “failure to state a claim upon which relief can be granted.” The court assumes well-pleaded material facts are true and asks whether, even so, the law allows relief.
• Plausibility standard: The petition must allege enough concrete facts to make relief more than speculative; mere labels, conclusions, or unsupported suspicions do not suffice.
• Certificate of probable cause (CPC): A gatekeeping device for habeas appeals; the Supreme Court reviews only the issues it certifies.
• Ineffective assistance of counsel (Strickland): The petitioner must show both (1) deficient performance and (2) prejudice—i.e., a reasonable probability the result would have been different.
• Speedy trial (Barker test): A balancing test considering length of delay, reasons for delay, whether the defendant asserted the right, and prejudice—no single factor is determinative.
• “Substantial justification” for victim psychiatric exams: A demanding threshold; inconsistency alone is not enough, and the defense must show concrete reasons such an exam is necessary.
• Abandonment/waiver on appeal: Even preserved or certified issues can be lost if the appellant does not argue them in the opening brief; new issues generally cannot be raised for the first time on appeal.

5. Conclusion

Guzman v. Sullivan affirms dismissal of Guzman’s habeas claims on the certified issues he briefed and enforces strict limits derived from the CPC and appellate waiver doctrines. Its lasting significance is procedural: the Court clarified that Rule 12(b)(5) habeas dismissals are governed by the same plausibility-based pleading standard applicable in South Dakota civil practice and expressly abandoned reliance on the “no set of facts” formulation in habeas. At the same time, the Court signaled that habeas courts should consider whether an indigent pro se petitioner’s lack of counsel and lack of access to records or investigatory tools makes dismissal premature—an observation likely to shape future disputes over the intersection of pleading plausibility and SDCL 21-27-4’s statutory counsel regime.